Case Law and Property Rights by Erica Furney

Published June 1, 2018

Here are three examples of case law which speak to people’s property rights. Ontario Landowners Association (OLA) members uphold these rights. The case law below demonstrates positive outcomes when property owners took government entities to court for interfering with their private properties.

The Conveyancing and Law of Property Act, Ontario RSO 1990 is also important to the OLA. The rights held under 15.1 of the Conveyancing and Law of Property Act are in legislation format and all politicians should know of it.

Consider bylawsandlegislation that make a claim of right, title or interest over any one of the 45 rights listed in Section 15.1 of the Conveyancing and Law of Property Act (see below), then look at the court cases listed above. The argument can be presented that the courts already have ruled that when a claim is made against the rights in 15.1, or harm is done to the property and the ability to make money from it (like in the Antrim case), the system is set up so that if the government makes legislation that affects private property in a negative way,the government must pay.

Rausch vs Pickering demonstrates that municipal bylaws may not contradict provincial or federal law. The Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1 (the “FFPPA”), has a provision that prevents a municipal by-law from restricting a normal farm practice that is part of an agricultural operation. And because Pickering made the farmer, Rausch, get rid of his pigs, Rausch was owed a “duty of care” from the municipality.

Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation) shows that even the common good of a road that hurts a business’s profit margin means the government must pay.

And Lynch v. St. John’s (City) covers the Planning for large areas of land for the common good resulting in a de facto expropriation.

What is included in Conveyancing and Law of Property Act 15 (1)?

Every conveyance of land, unless an exception is specially made therein, includes all houses, outhouses, edifices, barns, stables, yards, gardens, orchards, commons, trees, woods, underwoods, mounds, fences, hedges, ditches, waters, watercourses, lights, liberties, privileges, easements, profits, commodities, emoluments, hereditaments and appurtenances whatsoever to such land belonging or in anywise appertaining, or with such land demised, held, used, occupied and enjoyed or taken or known as part or parcel thereof, and, if the conveyance purports to convey an estate in fee simple, also the reversion and reversions, remainder and remainders, yearly and other rents, issues and profits of the same land and of every part and parcel thereof, and all the estate, right, title, interest, inheritance, use, trust, property, profit, possession, claim and demand whatsoever of the grantor into, out of or upon the same land, and every part and parcel thereof, with their and every of their appurtenances.